L.O 1 Understand the nature and sources of English Law and the concept of natural legal persons Flashcards
1
Q
What are the 2 different classifications of law?
A
- Public Law & Private Law.
2
Q
What is Public Law?
A
- Concerned with the legal structure of the state and relationships between the state and individual members of the community.
- Governs the relationship between one state and another.
- Includes Constitutional Law, Administrative Law and Criminal Law.
3
Q
What are the three types of public law?
A
Constitutional, Administrative and Criminal
4
Q
What is Constitutional Law?
A
- Concerned with the structure of the main institutions of government and their relationship to eachother (i.e the two houses of parliament in the UK and that between central and local government )
-Also includes;
The making of treaties with foreign states.
The Status, function and powers of the Monarch, members of parliament , government ministers, the judiciary, the civil service and the armed forces.
5
Q
What is Administrative Law?
A
- A branch of constitutional law
- Concerns the legal relationship between private citizens and the various agencies of local and central government and the impact of their activities on ordinary individuals.
Examples; - Questions of local rating
- Taxation and compulsory acquisition of land
- The powers of local boards and authorities in relation to highways
- Health and education
- Granting of licenses for various trades/professions.
6
Q
What is Criminal Law?
A
- Criminal Law is concerned with the control of behaviour which harms or threatens peace or stability of the community.
- Control is exercised by punishing persons who commit serious wrongs which are likely to damage the interests of society as a whole. i.e even if a crime effects one person individually, if they go unchecked, it is society as a whole who is threatened.
7
Q
What is Private Law?
A
- Governs the relationship between legal persons such as individuals, businesses and other organisations.
- Commonly known as civil law.
8
Q
How does Private Law relate to Insurance?
A
The legal rules which govern insurance are part of the civil law. The most applicable areas are the law of contract and the law of torts; mostly relevant to liability insurance.
9
Q
what are the characteristics of English Law which distinguish it from other legal systems?
A
- Age and continuity
- Little codification
- Judge made law
- Independence of the judiciary
- Adversarial system
- No written constitution
- Rule of law
10
Q
What is meant by Age and continuity?
A
English law has a long history and has developed over 900 years. Many cases and statutes go back over 500 years.
11
Q
What is meant by little codification?
A
A legal code is a systematic collection of written laws arranged so as to avoid inconsistency and overlapping.
Certain parts of English law have been codified, including criminal law. However, only a few areas of civil law has been codified - relating to sale of goods, bills of exchange and marine insurance.
However in many countries, the whole or a great deal of the law has been reduced to a series of written codes.
12
Q
what is meant by judge-made law?
A
The decisions of judges in the superior courts have had and continue to have an effect on the growth and development of English Law. In other countries the function of a judge is merely to interpret and apply statutory codes of law. However, in England the system of binding precedent allows the decisions of judges to become part of the law itself and allows the law to on a particular subject to adapt and develop through a series of binding decisions.
13
Q
what is meant by ‘independence of the judiciary’
A
English judges are appointed by, or on the advise of the Lord Chancellor or prime minister, but the judiciary is effectively free from the government control. Senior judges can be removed from the office before their retirement age of 70 only by a motion approved by each house of parliament.
Junior members of the judiciary can be removed by the lord chancellor only on grounds of incapacity or misbehaviour.
to summarize; Judges are therefore largely free from political interference.
14
Q
What is meant by an adversarial system?
A
In the English legal system, a court case is between two sides.
- In civil law, this is between the claimant (plaintiff) and the defendant.
- In criminal law, this is between the prosecution and the defence.
- The court itself, consisting of the judge and sometimes a jury, remains neutral. The role of them is not to investigate but simply listen to the evidence presented and give judgement.
- In civil proceedings, the claimant has the burden of proving his case on the balance of probabilities.
- In criminal proceedings, guilt must be proven ‘beyond reasonable doubt’: this means that the court must be completely sure that the allegations made by the prosecution are true before the defendant can be convicted.
An alternative system to this is called an inquisitorial system - in which the court does not remain neutral but plays an active part in discovering the truth. The only courts in England which employ the inquisitorial procedure are the coroners court, which inquire into cases of violent, unnatural or suspicious death.
The civil procedure rules which came into force in April 1999, could be said to signal a gradual change in the role of the English courts. The rules grant courts more extensive powers to ‘manage’ cases which come before them.
15
Q
What is meant by rule of law ?
A
- Although the constitution of the UK is unwritten, it includes what has become a ‘rule of law’. - a rather imprecise concept but is generally regarded as embracing the following principals.
- The powers exercised by a politician and officials must have proper foundation and be based on authority given to them by law.
- The law generally should be reasonably certain and predictable.
- people should be treated equally by the law.
- no one should be punished until having had a fair hearing.
- Every person should have a right of access to the courts
16
Q
What does the development of the English Law refer to?
A
The process whereby local customs were developed into common law, I.e a system of rules which applied throughout the country. this also refers to how the development of common law ;ed to the creation of another set of rules, known as equity.
17
Q
summarize the development of the common law;
A
After the Norman Conquest of 1066, the Normans sought to establish a strong central government and administration to reinforce their hold on the country.
- central ‘royal’ courts were developed and the king eventually had official representatives go to other parts of the country to check on the local administration and gradually adopted a judicial function.
- local variations eventually ceased.
- in 1474 the court of chancery, distinct from the kings council and the royal common law courts was formally established and presided over by the lord chancellor. The system of rules which was developed and applied in the court of chancery became known as equity. This literally means fairness, reflecting the chancellors original role as spiritual leader.
18
Q
Summarize the development of equity:
A
- 1500’s; By the sixteenth century, the court of chancerys influence was widespread and its jurisdiction became a threat to that of the common law courts.
The conflict of the two systems came to a head in the Earl of Oxfords Case 1616. This resulted in a ruling that if there was a conflict between common law and equity, equity should prevail.
1600s; the chancery began to follow its own precedents. Equity came to have its own fixed rules and principles.
Judicature Acts 1873-75; These acts built the common law courts and the court of chancery in a single system called the supreme court of judicature (now named the senior courts of England and Wales)
19
Q
What are the distinguishments between common law and equity?
A
- there are disagreements as to whether common law and equity are now fused into one set or if they are separate.
- common law refers to a unified system of law; that is, to the parts of our law that are contained in the decision of the courts - case law rather than statute law. (statute law consists of acts of parliament and written rules and regulations.
- equity can be described as a supplement to the common law, it is best understood as a collection of rules offering an alternative solution to some legal problems.
20
Q
what are the principals and remedies which equity has given our legal systems?
A
- The law of trusts; The trust is a legal relationship created by a settlor through which assets are placed under the control of a trustee, for the benefit of a beneficiary or a specified purpose.
- Specific performance; a court order compelling a person to carry out a promise which they have given to another.
- Injunction; A court order compelling a person to do something or prohibiting them from doing something.
- principles of promissory estoppel; the rule that a promise can be enforceable by law where the promisee relies on that promise to their detriment.
- the principals of contribution and subrogation.
21
Q
What are the two ways in which society may change?
A
- Social Changes
- Technological Changes.
22
Q
What are social changes?
A
Changes in the way in which people are expected to behave.
23
Q
what are technological changes?
A
New inventions or scientific developments which require legal control.
24
Q
what are the five sources of new law?
A
- Legislation
- Judicial Precedent (Case law)
- Local Custom
- Legal books/ Treatises
European Community Law; the importance of which may change depending on the agreement between the united kingdom and the EU Union. Following Brexit there has been no clear indication as to what the scope of the future relationship between the UK and the EU will be.
25
D1; What is legislation?
legislation is law which has been created in a formal way and set down in writing. In England, the only body which has the power to make general legal rules is parliament.
The principal from which parliamentary legislation takes is Acts of Parliament or statues.
Legislation is sometimes called statute Law.
26
what are the three aspects which parliament consists of?
The house of commons
The house of lords
The Monarch (as a formality)
27
What is our Legislative process?
Green & White papers, turning into private and public bills
28
What are green and white papers?
The government will often consult interested parties and the general public before new legislation is introduced. This is done by publishing a green paper; inviting responses to proposed changes in the law. After these responses are taken for consideration, a further white paper is published; giving advance notice of more definite proposals. This will then be drawn up in the form of a bill.
29
what are the two forms of Bills and what do they do?
| p10
Bills may be either public or private. If they pass into law they become known as public or private acts respectively.
- A public act = one which contains law affecting the whole community, such as theft acts (which are part of the general criminal law)
- A private act = on the other hand, is passed for the benefit of a particular individual, organised or group. Very often a promoter of a private bill is a local authority which is seeking the power to make compulsory purchase of land for a new local development. examples; Lloyds act 1982 and the insurance broker registration act 1977, which directly affect only members of the insurance community.
30
What is the procedure for the enactment of public bills?
(please note this is usually done in the house of commons and the procedure differs slightly in the house of lords.
```
First reading -
Second reading -
Committee stage -
Report stage -
Third reading -
```
31
What does 'first reading' involve?
- This is largely a formality. The clerk of the house reads out only a title of the bill to inform the members of its existence. It is then printed and published.
32
What does 'second reading' involve?
General merits of the bill are debated in the house and a vote taken as to whether it should proceed.
- Alternatively, in a procedure designed to save time, the bill is first referred to a standing second reading committee, which recommends whether or not the bill should be read a second time. This is automatically followed for public bills in the house of commons unless 20 members object, and for all private bills.
33
What does the committee stage involve?
If the bill survives the second reading, it will pass on to the committee stage.
- The bill is discussed by a standing committee which usually consists of about 20 to 30 members. (various parties from the house of commons).
- Amendments of the bill are voted on.
34
What does the report stage involve?
- The bill as amended by the committee is reported to the house as a whole. The amendments are debated and the bill may be referred back to the committee for further work.
35
What does the third reading involve?
The third reading offers a final opportunity for debate. In theory; amendments may be proposed but in reality only minor changes are likely to be made.
36
what happens after a bill has been through the house of commons?
- it then passes through the house of lords. The house of lords no longer has the power to reject a public bill - they may only delay the process.
37
what happens once a bill has been through the house of lords?
the Bill then receives a royal assent and is then referred to as an act or statute. this becomes a new law comes into force when it receives the royal assent.
38
what happens if a public bill has not completed all of its stages during a particular session of parliament or when parliament is dissolved?
It lapses. it must start its passage anew during the next session or be dropped completely. This does not apply to private bills, the passage of which may straddle two or more sessions. I.e the lloyds act 1982 - was introduced in October 1980 but was not completed until July 1982.
39
what does 'codifying and consolidating acts - tidying up the law refer to?
an act may introduce a new law which is entirely new, however there will already usually be existing law under that subject, in the form of earlier statutes and case law; often there is a whole series of previous acts and regulations. The result of this series of acts and regulation can make the law appear disorganised and complex. therefore, parliament decides to tidy up the law from time to time; particularly in fields where legislation is passed frequently, i.e tax, company la etc. This tidying up can be done by consolidating acts or codifying acts.
40
What does 'consolidating acts' mean?
A consolidating act is one that repeals all previous legislation on a subject and reenacts it in one logically arranged statute. No new law is created but existing statutory enactments are brought under one 'umbrella'.
41
Give two examples of consolidating acts?
The road traffic act 1988
The European parliament and council directive 2009/102/EC
(this act consolidated the previous eu directives relating to motor vehicle insurance without making major changes to the law as set out in these.
42
What is codifying acts?
- When the government decides not only to consolidate current legislation on a particular topic, but to also includes principles embodies in case law. As a result most or, in some cases, all the law on a particular topic including existing statute and case law is reduced to a single code. There are a number of examples in non-consumer (business) Law.
43
List some examples of non consumer (business) law:
- the bills of exchange act 1882
- The partnership act 1890
- The sale of goods act 1979 - The Law relating to the sale of of goods act 1893 which was subsequently amended by a number of later acts. The legislation was then consolidated in the sale of goods act 1979, since when there have been further amendments.
- The marine insurance act 1906. Consolidated previous legislation on marine insurance together with legal principles contained in around 2,000 decided cases.
44
what is The Law commission responsible for?
The law commission (established by The Law Commission act 1965) is responsible for the consolidation and revision of the statute law.
- has a role of reviewing the English law as a Hole and recommending ways in which it can be updated, simplified and developed. codification is part of this process.
- published reform, codification on acts such as CIDRA (the consumer insurance, disclosure and representations, act 2021 and the Insurance Act 2015.
45
what is Retrospective/retroactive legislation?
Is legislation which affects acts done or rights acquired before it came into effect.
46
What is delegated legislation?
Acts which confer such power which lay down the general framework of the government rules are called enabling acts, and rules made under the authority of those acts are known as delegated or subordinate legislation.
47
what are the 3 most important types of delegated legislation?
Statutory instruments, Orders in council and bye-laws.
48
What are statutory instruments?
Most enabling acts which give ministers and their civil servants power to enact delegated legislation, stipulate that the powers in question are to be exercised in the form of departmental regulations or orders. These are known collectively as statutory instruments
49
What are Orders in council
when power or special importance is delegated by statute, such as power concerning constitutional matters, it is usually conferred on the privy council.
`the privy council. includes past and present members of the cabinet (senior members of government).
50
What are bye-laws?
Statutory authority may be given to certain bodies, particularly local authorities, to make bye laws which are of local application. They require approval of an appropriate minister.
51
what implications may arise in respect of interpretation of words?
Dispute arise frequently about the meaning of words used in both primary and subordinate legislation. The claimant and prosecution will often claim the word has opposite meanings.
52
what happens when the meaning of a word is conflicted by the two parties?
The court will be called upon to adjudicate on the question of meaning. As a result, statute law itself is subject to some influence by the judiciary.
The judges have many aids to interpretation, which can be classified as either statutory aids or common law rules.
53
what are statutory aids?
1.There are certain rules of interpretation which apply to statute law generally; these are laid out by the Interpretation Act 1978 as;
- words used in the singular are deemed to include the plural and vice versa.
- The use of the masculine gender includes the feminine and vice Versa.
- the term 'person' is deemed to include artificial entities such as companies as well as human beings.
(These rules may be overridden in the express provisions of a particular act)
2. Acts of parliament often contain an 'interpretation' section which gives precise definitions of important words and phrases.
3. Acts of parliament have preambles or a long title setting out the general scope and purpose of the act.
54
what are common law rules?
There are rules which the courts themselves have developed to assist with interpretation. there are three rules of interpretation. there are also specific presumptions applied.
1. the literal rule
2. the golden rule
3. the mischief rule
55
What is the common law, literal rule?
This rule takes precedence over the others. (is the primary rule)
-According to this rule, all words and phrases must be construed by the courts in their ordinary sense, and the ordinary rules of grammar and punctuation should be applied.
There are various subsidiary principles to the literal rule;
Noscitur a sociis rule; A general principle that a word must be determined by its context, and;
Ejusdem generis rule; Under this rule the meaning of any general term depends on any specific words which precede it.
These rules, and the literal rule itself, apply not only to the interpretation of the statutes but also to non consumer (business) contract such as insurance.
56
What is the common law, golden rule?
Where the meaning of words in a statute, if strictly applied would lead to an absurd result, and there is an alternative interpretation which avoids absurdity, the courts are entitled to choose that latter meaning and to assume that parliament did not intend the absurdity.
57
what is the common law, mischief rule?
Under this rule, the judge will consider the meaning of the words in the act in the light of the abuse or mischief which the act was intended to correct, and choose the interpretation which makes the act effective in suppressing this mischief. This is sometimes called the rule in heydons case, from the decision in 1584 in which it was first laid out.
58
What are some presumptions which apply to the construction of a statute?
There are a number of presumptions which apply to the construction of a statute, unless there are clear words to the contrary in the statute itself.
Amongst the most important are presumptions that the statute;
- Is not intended to create a 'strict' criminal offence (i.e, without liability or fault)
- is not intended to oust (do away with) the jurisdiction of the courts.
- is not intended to have a retrospective effect.
- applies only to the UK
- is not intended to infringe the requirements of the international law.
- does not bind the crown/government.
- Is not intended to interfere with vested (existing or estblished) rights or allow confiscation of property without compensation.
59
What is the effects of the human rights act on statutory interpretation?
- human rights are protected by the human rights act
- under s.3 of the human rights act the courts are obliged, where possible, to interpret statutory provisions in a way which is compatible with the rights protected in the human rights act.
- where such interpretation cannot be reached the higher courts may issue a 'declaration of incompatibility'. Thsis does not, however, invalidate the statutory provision, nor does it place the government or parliament under legal obligation to change the offending provision.
60
What is the effect of the European committees act on statutory interpretation?
Under 2(4) of the European Committees act 1972, any domestic legislation is passed or to be passed to be construed by the courts and take effect subject to EC obligations. The effects of S.2 are complex, but broadly it has lead the English courts to adopt a purposive approach to interpreting domestic legislation. However, it is not known yet whether it will have the same influence over the UK Law in the future.
- This means that to achieve an interpretation consistent with EU law words may be implied into the domestic statute and or the words of the domestic statute may be given a meaning that they would not otherwise have had. In interpreting statutory provisions, the English courts are bound to take into account the judgements of the European court of justice.
61
who are minor civil cases dealt by? (court & judge)?
dealt with in county courts, by a circuit judge who usually sits alone.
62
who are major civil cases dealt by? (court) - could involve claims for substantial sums of money
first heard at one of the three devisions of the High courts.
63
what are the three divisions of the high court?
Chancery, family and the queens bench.
each division of the high court also has its own divisions
64
what does the chancery division of the high court entail?
deals with:
- company matters
- partnerships
- trusts
- mortgages
- revenue matters
65
whats does the family division of the high court entail?
- Matters of family law including disputes about family property
- matters concerning children such as adoption and guardianship.
66
what does the Queens bench division of the high court entail?
- busiest sector of the high court, most judges.
- includes; commercial court, admiralty court (shopping matters), technology and construction courts.
- QBD has jurisdiction over every type of common law civil action, the principal areas are contract and courts
-
67
Why do each of the divisions in the high courts have their own divisions also?
Because each division of a division hears certain appeals from the county and magistrate courts.
68
how does the number of judges differ between high courts (chancery, family and QBD) and their divisional courts?
A high court judge usually sits alone whereas a divisional court will usually have two or more judges.
69
what is dealt with by the court of appeal (civil division), how many judges?
the court of appeal doesn't hear any cases at first instance but will hear appeals from the lower courts.
- appeals from the county court (in most cases) and the high court divisions are dealt with here.
- usually three judges but can be a 'full court' of 5 or 7.
70
what is the purpose of the final court of appeal; the Supreme Court?
- replaced the house of lords on 1st October 2001. (although the house of lords previous decisions still stand as precedent)
- the final court of appeal for all UK civil cases and criminal cases.
- Hears appeals on arguable points of law of general public importance.
- concentrates on cases of the greatest public and constitutional importance
- Maintains and develops the role of the highest court pf the UK as a leader in the common law world.
71
how many justices are there ?
12
72
how many justices does it take for a case in the Courts of appeal?
5; more on some occasions.
73
where do appeals from the court of appeal go?
to the Supreme Court.
74
what is the leapfrog procedure?
In some cases; appeals can be taken directly from the high court to the supreme; under what is known as the leapfrog appeal, skipping the court of appeal.
75
where are criminal cases and minor civil matters dealt with?
Magistrates court, from which there may be an appeal to the crown court or high court. More serious cases are dealt with by the crown court in the first instance after transfer for trial proceedings from the magistrates court.
76
what is a trial in the crown court like?
Cases dealt with in the crown court is before a single judge and jury, normally of 12 persons. (note juries are no longer used in civil cases, with exceptions such as libel proceedings.
77
where do appeals from the crown court go?
they go to the court of Appeal (criminal division).
for civil cases, there is a possibility of a further appeal to the supreme court, to which the same general principles and restrictions apply.
78
lay out the History of precedent:
- a precedent is a decision in previous legal cases where facts were similar to the case before the court.
- precedent Is a major source of law.
- Historically, judges developed a doctrine of 'stare decisis' ('Let the decision stand') and looked Into previous decisions in similar cases to ensure consistency. However the early judges were not compelled to follow previous decisions. Precedents were, at most only persuasive.
Judges became more compelled to follow decisions as the standards of printing and Law reporting developed from the sixteenth century onwards. It is now accepted that regard must be made to previous decisions.
79
what is the nature of precedent?
the precedent which the judge is bound to follow is not the earlier case as such, but the principal established in it - this is called 'ratio decidendi' - reason for deciding
80
what is the ratio decidendi based on?
the Ratio Decindendi is based on three things;
- The material facts of the case
- the decision of the judge or judges
- the reasons for the decision
to establish these it is necessary to consider the case and the report as a whole. sometimes, however there will be key passages in the summing up of a judge which appear to encapsulate the principle of the case.
81
what is obiter dicta?
Statements made by a judge which are not essential to the decision are called the 'obiter dieter'. these are not part of the ratio decidendi nor binding for future but may be persuasive; may have influence over future cases.
82
What is the operation of binding precedent?
Whether a precedent is binding or not depends on the level of court in which the decision was made. for example judges are only bound by decisions made courts higher than their own, or in some cases of equal standing.
83
whats the general outlook on binding precedent in the civil courts - Supreme courts (formerly the house of lords)
not bound by its own decisions. this was abolished in 1966, however the power to depart from its own previous decisions is used sparingly. English and Scottish courts are bound to each others decisions.
the courts in this division are the court of appeal (civil division, high court and county court)
84
what is the scope of binding precedent in the court of appeal(civil division) ?
A decision made by the court of appeal is binding in the high court and county court (the lower courts).
The court of appeal is generally bound by its own decisions unless two previous decisions conflict each other, in which one case may be chosen. or if its own previous decision is inconsistent with a decision made in the Supreme Court, judicial committee or the privy council.
85
what is the scope of binding precedent in the high court?
A decision made in the high court is binding on the inferior courts; the county and the magistrates courts.
a decision made by another high court judge is not binding on another in first instance, on another judge sitting alone; it Is instead a strongly persuasive influence.
this may cause conflicts, which will only be resolved when a similar matter is considered by a higher court.
-occasionally, high court judges hear appeals from lower courts, sitting in a 'divisional court' with two or more judges. decisions made here are binding on high court judges sitting alone and on magistrate courts but not crown courts.
86
what is the scope on binding precedent in the county courts?
they're bound by all decisions of the higher courts..
| county court cases are not binding on any court however have been found to be influential
87
What is the scope on binding precedent on the supreme court (formerly the house of lords). (criminal devision)
The decisions of the Supreme Court in criminal matters are binding on all lower courts.
since 1966 the supreme courts has had the freedom to override its own decisions - this is done very rarely in criminal cases, but was exercised for the first time in a criminal case in 1987.
88
what is the scope of binding precedent in the crown court?
bound by the decisions of the Supreme Court and of the court of appeal, but are not bound by the high court or divisional courts.
the crown court is not binding on any court, and are at most purely persuasive
89
what is the scope of binding precedent in the court of appeal (criminal devision)
the decisions are binding on lower courts such as the crown court and magistrates court.
is bound by its own decisions, although more flexible than the court of appeal civil division. - a full court of five judges can overrule a decision made by an ordinary court of three.
not bound by decisions made by the court of appeal (civil division) and vice versa.
90
What is the scope of binding precedent in the magistrates court,
bound by decisions of the higher courts except that they are not bound by the decision of a crown court hearing appeals from the magistrates court. cases heard in a magistrates court are not reported officially and have no binding force.
91
What is the judicial committee for the privy council?
This is the final court of appeal from some common wealth countries and overseas territories - it is, strictly speaking, outside the English courts. many of the members who hear these appeals are justices of the Supreme Court, therefore the privy council has much of the same standings as the Supreme Court,
They are considered highly persuasive, which will usually be followed unless there is high compelling reasons not to.
is the final court of appeal for
- ecclesiastical and prize cases
- tribunals of the medical, dental and optician professions
(its decisions in these cases which are English law and are binding)
92
give a key example of a decision Made by the privy council
The Wagon Mound 1961 - Oversees tankship UK Ltd v Morts dock and engineering ltd.
93
what is meant by reversing?
if person A loses a case to person B in the high court for example, but then successfully appeals to the court of appeal, the decision in the first hearing is said to be reversed.
94
what is meant by overruling?
Overruling occurs when a higher court decides a matter which is governed by a precedent set in an earlier case on a different principle.
this effectively cancels out the ratio decidendi of the earlier case and creates a new one.
A case cannot be overruled if the details around the ratio decidendi isn't exactly the same.
95
What is disapproving?
A decision is said to be disapproved when a court offers the opinion that an earlier case is wrongly decided but is not in a position to overrule it.
when the earlier decision still stands, however it authority may be weakened as a result of the disapproving and this may lead to the overruling of a case in the future.
96
what is distinguishing?
Distinguishing occurs when a court declines to follow a previous decision on the grounds that there are important points of difference in the case which has gone before it. therefore the cases are distinguished by 'the facts' - and a court can avoid following a precedent which would otherwise be binding on it, although this may lead to an element of artificiality in the law, with very fine distinctions which may not be obvious.
97
What are persuasive precedents?
precedents which are influential but not binding.
- Decisions made in lower courts or courts of equal standing.
- decisions of courts outside the UK legal system,
- Obiter dicta - especially of senior judges in high level decisions
- textbooks
98
give some advantages to the system of precedent?
- Provides certainty for persons as to their rights and liabilities
- allows for the possibility of growth, precedents can be extended to new situations
- provides flexibility where a precedent will lead to a nonsensical decision in a case with different facts, its scope can be restricted by the process of distinguishing.
- gives the English Law the wealth of detailed practical rulings, based on real situations rather than theory.
99
Give some disadvantages of the system of precedent?
- once a rule has been laid down as binding it is not easy to change - this creates rigidity in the system.
- the bulk and complexity of a case makes it difficult to navigate.
- the principal of law contained in some decisions is sometimes obscure.
- the development of precedent can be slow as it depends entirely on litigation.
100
what is required within the English legal system for precedent to work? how do judges find previous cases?
Law reports
101
when was law reporting established?
established by the legal profession in 1865.
102
what is the use of law reports?
to provide systematic and accurate law reporting services.
separate volumes are published each year in respect of cases heard in the queens bench, family and chancery divisions of the high court and appeals from the courts of appeals from those courts to the court of appeal.
- decisions from the house of lords are published in a separate volume of appeal cases. these can be identified by letters AC in the citation.
103
how often are law reports issued?
annual volumes are issued, as well as weekly reports, which enables accounts of important decisions to be available quickly.
104
what are the 'All English Reports'?
they started in 1936, are general reports (i.e include all cases heard in various courts) and are published in weekly and annual volumes.
105
what are 'specialist law reports'?
there are various other private reports of a special nature.
an example; the Lloyds reports, which specialise in non consumer insurance cases.
106
what are the other sources of law reports?
breif reports appear regularly in news articles, they can also be found on websites such as lexisnexis or west law
107
what is local custom?
previous minor sources of law.
English common law was based on customs which overtime were adopted by the country. This process was completed many centuries ago , and custom is no longer a source of law.
108
what is European community law?
this is a major source of law for both the UK and the other member states. however the future relationships between the eu and the uk is currently unknown at the time of this study text update.
109
what is the aim of the treaty of Rome 1957
this treaty established the European Economic Community which aimed to set up a large European trade free area. The EEC created a common market and customs union among its members.
the aims of this treaty are heavily economic.
the object is to remove external barriers of trade between member states. the resulting 'single market' should benefit the consumer by achieving economies of scale by stimulating competition. This should enable Europe as a whole to compete effectively with economic giants such as japan and the usa.
the object of the economic integration is being achieved by two main ways;
- allowing the free movement of goods, people, services and capital within the community.
- harmonising law in certain key areas, especially in relation to trade and commerce.
note most EU law is concerned with economic matters; such as agriculture, transport, trade, commerce, finance and general business.
110
what is the aim of the Maastricht treaty?
- is known as the treaty of the European Union. it created the European Union, which consists of three pillars.
- the European committees.
- common foreign and security policy
- police and judicial cooperation in criminal matters.
the aims of this treaty are heavily political
111
what was the impact of the advent of the eu in 1993?
the treaty of Rome remained one of the EUs core documents, even though the eec had been renamed the European community. and became imbedded into the EU.
112
what happened at the passing of the Lisbon treaty 2009?
The EC was eliminated and the treaty of Rome that had established it was formally renamed the treaty on the functioning of the European Union
113
what are the four main institutions of the European law?
council, commission, European Parliament and court of justice.
114
what is the council institution of eu law?
this body has the most legislative power, made up of representatives from the member states, drawn from the government of those states.
115
what is the commission institution of eu law?
each member state is represented by a commissioner who has the power to initiate legislation (and complete it in some cases) and who administer some of the communities funds. it may also initiate legal proceedings against a member state that fails to fulfil community law.
116
what is the European Parliament institution of eu law?
the eu parliament is selected by elections, held every five years. the parliament has supervisory powers but little to none formal control over the delegated legislation passed by the commissioner.
117
what is the court of justice institution of the eu law?
this court is based in Luxembourg. is the ultimate court of appeal on matters of European law.
- sits in chambers of three or five judges, or in 'plenary' sessions of seven to seventeen.
- judges have renewable terms of 6 years (three years in case of the president).
-the judges post hearing deliberations are secret..
-the french language is used for discussion.
-one collegiate (collective) judgement is given, which all judges sign.
note that eu courts are not bound to follow precedent of an English court.
118
what are the main 6 sources of eu law?
- treaties - especially the treaty of Rome.
- regulations
- directives
- decisions
- recommendations
- opinions
119
how are the treaties sources of eu law?
they are regarded as the constitution of Europe, setting out the basic framework and fundamental principals of European law, such as the right of free movement of goods, services, people and capital.
120
how are regulations sources of eu law?
regulations are laws made by the council or commission which have general application.
- they are automatically binding in their entity on all member states without action from government or legislation - therefore are known as 'self enacting'.
- GDPR 2018is an example go eu regulations which has a direct effect on the member states. it has been used to repeal precious GDPR legislation.
121
how are directives sources of eu law?
Directives of the council or commission are binding on member states to which they are addressed (normally to all member states) as to the result which is to be achieved. however the act of implementing the law contained in the directive is down to the state.
- in the uk, implementation of directives is left to primary and subordinate legislation - i.e an act of parliament or delated legislation. directives are used as a formal part of general legislation for the community.
directives are not self enacting and have to be converted into national law. A member state who fails to implement a directive could be sued for damaged by an individual who suffers loss as a result of the failure to implement
case example; Francovich V Italian republic 1991
122
how are decisions sources of eu law?
they do not have a general application and are binding only upon those whom they are addressed. i.e to a particular member state or particular organisation
123
how are recommendations and opinions sources of eu law?
have no binding force and are advisory only.
124
what is the European communities act 1972?
The European Communities act sets out how European community law is to take effect in English law.
International law is not applied by the English courts unless it has been incorporated into English law by domestic legislation.
Section 2(1) provides that certain forms of Eu law (treaties and regulations) are to have direct effect in English law with no further formalities -without the need for domestic legislation. if these law is inconsistent with domestic statutory provisions, the English courts can grant an injunction preventing the domestic law from being applied.
125
Give examples of European Law
A large amount of EU law concerns matters of trade and commerce which have a European dimension.
relating to insurance;
Much of the Insurance Companies Act 1982 - which dealt with the regulation of insurers, was based on EU directives. The act has now been replaced with the Financial Services and Marketing act 2000
- the Consumer protection act which is based on EC directive and effects product liability insurance.
much new industrial safety legislation and many laws on the environment now originate in EU. both of these areas are of concern to liability insurers.
126
what is the civil procedure relating to the insurance industry?
the vast majority of court cases involving insurance companies arise in connection with the insurance policies they issue. These insurance cases fall into three broad categories;
only 5% of cases started in the civil courts get as far as full trial, the vast majority are settled before the stage.
127
what are the three categories that insurance cases fall into?
- Cases where there is a dispute with the insurer/broker and policy holder. ie disputed claims or breach of contracts.
- disputes between insurers themselves about sharing a claim.
- where an insurance company is defending their policyholder against a third party.
128
why may an insurance company find it necessary to go to court?
- may get involved in disputes about taxation, or matters of company law, or about the buildings and other property that they own.
- they may have to go to court to settle an employment dispute about pay, working conditions, pension rights etc.
129
What are the civil procedure rules?
the current system of justice is based on reforms recommended by lord woolf in his report 'access to justice' (the woolf report 1996). this acted to improve a system which was seen as being too expensive, slow, uncertain and complicated.
130
what are the main aspects of the woolf report?
- introduced on the 26th April 1999
- three separate 'tracks' for cases, depending on they value and complexity.
-Encouraging use of alternative dispute resolution (ADR)
-Giving judges more responsibility for managing cases.
-more use of information technology
-simplifying documents and procedures having a single set of rules for proceedings in both the high court and county court.
shorter timetable for cases to reach court and for the length of trials.
131
what are the pre action protocols?
these are a list of things each party is required to do before they start legal action; for example each party id required to exchange details to facilitate negotiation and see if they can avoid court all together.
132
why are pre action protocols particularly important for personal injury claims?
because many insurance claims, including EL and Motor are for bodily injury
133
what are four things the pre action protocol requires?
- The claimant should send the defendant and insurers (if known) a letter of claim promptly once they have enough information to support their claim.
- The defendant should respond (identifying their insurers) within 21 days
- The defendant (usually, in effect, the insurer) should investigate the claim and respond within three months either admitting or denying liability, with reasoning.
- the parties should co-operate in appointing any expert witnesses that are required and should try to agree to use one expert.
134
pre action proceedings for what 3 kind of claims are issued through the ministry of justice claims portal?
- road traffic claims
-EL
-PL
between £1,000 to £2,000
135
How can we determine which cases are heard in which court?
- The two courts that hear civil cases at first instance are the county court and the high court.
- Proceedings may not be started in the high court unless the value of the claim is in excess of £100,000.
- Proceedings which include a claim for damages in respect of personal injuries must not be started in the high court unless the value of the claim is in excess of £50,000.
- Defamation actions must be started in the high court.
136
how would a claim be issued?
- the claimant will draw up a statement of the case, usually done with a claim form providing details of the claim.
the details will include; the court which the claim is being brought, the names of both parties, the details of the claim (facts) and the amount of money being claimed.
137
How may a defendant go about responding to a claim
either admitting liability or defending the claim.
- The defendant must send either an acknowledgment of service or a defence within 14 days. if just an acknowledgment is sent then they have a further 14 days to defend the claim.
- If the defendant does neither of these things the claimant can ask the court to make an order that the defendant pay the claimed amount plus the judgement in default costs.
138
How do the courts allocate the case to the most appropriate 'track'?
The court will allocate the case to the most appropriate track for dealing with it once the claim is defended.
-This decision is made by the district judge in the county court or the a district judge or master (procedural judge) in the high court. There are three tracks.
usually, which track is chosen is based on value of the claim, however cases may be allocated to a higher court due to complexity, or moved to a lower track with the consent of both parties.
139
what are the three tracks?
Small claims track
Fast track
Multi track
140
what is the small claims track?
This is normally used for disputes up to £10K, or personal injury cases which are up to £1K
on allocation, the court will issue instructions, asking for relevant documentation and any expert reports within 14 days before the final hearing (of which is disclosed in the instructions).
the aim is to have a simple and cheap procedure, therefore the use of lawyers is discouraged though very often used, and no expert evidence is given without permission of the court.
-District judges are used, they are encouraged to play an active part by asking questions and making sure all important points are explained by the parties.
141
what is the fast claims track?
Straightforward disputes where the value is not more than £25K
- the judge will encourage the parties to agree directions; a strict timetable for dealing with pre trial such as disclosure of documents, exchange of witness statements etc. This is in an attempt to try to prevent the sides from wasting Time and running up costs. if no direction is agreed then the judge will set the timetable.
- The aim is to have 30 weeks and to conclude the trial in one day.
- Heard by the district and circuit judge.
- proceedings are more formal than in small claims.
- the court limits the use of oral evidence and cross examination.
- The number of expert witnesses is restricted to usually only one, jointly instructed by both parties.
142
what is the multi track?
Cases with a financial value exceeding £25K.
- Usually dealt with in the county court, though can be sent to the high court if the claim exceeds £50K
- Usually heard by a circuit or high court judge who manage the case.
- the judge sets the time table or fix one or more case management conferences to arrange the directions and revise the progress of the case.
143
what does it mean if a party asks for a 'stay of proceedings'
either party can ask for a stay of proceedings, it is used in order to attempt to settle outside of court by way of alternative dispute resolution. The initial stay (requested via the allocation questionnaire) will be for one month.
ADR is increasingly being encouraged and an unreasonable refusal may result in cost penalties.
144
what is the power to strike out?
the court has the power to strike out all or part of a statement given by either party if it is seen to make no sense, or have no reasonable grounds for bringing or defending the claim.
145
what is part 36 offers and payment?
- the rules of this are detailed in part 36 of the civil procedure rules.
- it is possible for a person involved in litigation to make the other party an offer in hope of settling the case before it goes to trial and/or to make a payment into the courts.
- if the payment made into the court is accepted, the case ends. however, if not, the refusing party has the opportunity to 'beat' this payment in court (the hope to get more). If the judge awards less money than previously offered, the party who refused will have to pay the difference into the court. The judges are not allowed to know the amounts offered before their final judgement has been given.
The aim of this is to encourage the acceptance of reasonable offers to prevent unnecessary court hearings.
the part 36 offer can be made by either party.
146
what funds go into litigation?
- court is expensive, potential costs of litigation can be a problem for most people.
- there are lawyer fees, as well as heavy costs associated with obtaining evidence, medical reports and other expert opinions as well as court fees.
- if the claimant wins they can usually claim all of these back, if they lose they have to pay both their own and the defence costs.
147
what policy can someone put in place to fund litigation?
legal expenses.
legal expenses can also be brought after an incident giving rise to a legal claim (at the beginning before the letter of claim is sent to the defendant) as there is still uncertainty about the outcome of the case. this is called ATE insurance (after the event)
148
when did significant reform to the funding of civil justice come into force? and what elements of change were effected?
April 2013,
areas of key change were;
- damages -based agreements (DBAs)
- conditional fee agreements (CFAs)/ after the event insurance (ATE)
149
what are damages based agreements?
The new rules allow for contingency fees or damaged based agreements.
under these new rules, lawyers are able to conduct litigation in return for share of damages, but the defendant will be liable for costs only on a conventional basis.
The claimant will have to pay any shortfall in damages.
The cap on the amount of damages that can be taken as a contingency fee is; 25% on personal injury, 35% for employment and 50% on all other.
150
what are conditional fee agreements and after the event insurance?
CFA and ATEs premiums are no longer recoverable from the loosing party where arrangements are entered into after April 2013. note that because claimants are no longer able to recover the success fee or ATE premium there has been a 10% uplift in general damages for non pecuniary loss (pain and suffering, loss of amenity)
151
what does 'cost management' refer to?
this update after April 2013 means that the parties have the opportunity to sit down before the first case management conference and discuss/agree budgets. the court will not depart from this budget without good reason.
152
what are qualifies one way costs shifting (QOCS) for personal injury claims.
claimants will be awarded costs if successful but will not have to pay the defendants costs if they lose, exceptions are where the claimant has failed to beat there part 36 offer or where a claim is fundamentally dishonest or stakes out as an abuse to the process.
this means that defendants to personal injury claims will not usually be Able to recover any costs even if the claim was successfully defended.
153
what are the two groups of practicing lawyers?
solicitors and barristers (known as advocates in Scotland)
154
what is the role of a solicitor?
They offer professional advise on all kinds of legal matters.
They are able to represent their clients in court. They do this mainly in the lower courts but some solicitors apply for and obtain advocacy rights in the higher courts also. (including of course, insurers)
- Most solicitors work in private practices.
155
who are solicitors regulated by?
the solicitors regulation authority.
| -(the law society represents solicitors)
156
what is the role of a barrister?
- generally act on the intructions of solicitors
- first main role is when specialist expertise are needed they will give their opinion on complex matters of law.
- second, when clients need representation in higher courts (i.e the crown, high, courts of appeal and supreme) barristers provide specialist advocacy advise.
157
who is the barristers governing body?
the general council of the bar of England and Wales, commonly known as the bar council (faculty of advocates in Scotland) regulation of the profession if achieved through the bar standards board.
158
what is a 'Legal personality'?
defined as the 'lawful characteristics and qualities of an entity ( a living person, company, charity etc). It includes legal rights, duties and the capacities to enter into a contract
159
Does the law effect everyone in the same way?
no, all persons are subject to legal rules which protect them, give them rights and impose duties on them however, some organisations and different people have their own rights and duties
160
what are the two main categories that the law divides people into?
natural persons and juristic persons.
| the crown is a special case and doesn't fit into either category
161
what are natural persons?
- All human beings are referred to as natural persons.
- most persons posses the full range of rights which the laws allow and are subject to a full range of duties.
- Some natural persons have special status, which may carry with It limited legal capacity, a more limited set of rights and duties. these could be minors, persons of unsound mind, bunkrupts and aliens.
162
what does the 'status' of a person relate to?
this indicates whether they belong to a particular group
163
what does 'capacity' of a person relate to?
what the person is legally entitled to do
164
how can a person have more than one statuses?
a person may have multiple statuses which each impose different obligations and gives particular rights.
165
give 3 examples of different statuses a person may have?
- to be a British citizen, which imposes a duty of loyalty and gives entitlement to the protection of the crown
- to be Married, which imposes an obligation to maintain the partner in marriage and gives rights in respect of children and;
- have attained their majority (which brings a generally unrestricted capacity to enter into contracts and capacity to vote.
166
what are the four main types of classes natural persons that carry different duties and capacities?
Minors, Persons Lacking mental capacity and bankrupts
167
How are minors treated differently by the English legal system?
(under 18s). through;
- Contract; because they are likely to be relatively inexperienced in such matters, there are no special rules to protect minors who inter into contracts.
- Torts; In the law of tort, minors are fully responsible for their acts, however, a party could find it hard to recover compensation from a minor due to lack of legally owned assets.
- Property; a Minor may own property such as clothing, books, equipment or a car but may not hold what is known as legal estate in land. therefore they cannot own a house outright but can do so as a beneficiary under a trust.
- Criminal law; minors here divide into two classes; full criminal responsibility applies to minors over 10, although the legal procedures followed and punishments employed differ from those used for adults. children under 10 are presumed incapable of committing a crime and this presumption cannot be rebutted.
- Litigation; minors involved in litigation must sue through a 'next friend' - i.e an adult who is responsible for them. a father, or mother usually takes on these responsibilities. Minors are unable to voter stand at elections, or sit at a jury, or make a will (unless they are members of the armed services or a seaman at sea). they cannot marry until they are 16 with consent from a parent, or 18 without.
168
How are persons lacking mental capacity treated differently by the English legal system?
Generally, these persons are treated as responsible for tortious acts, however this may not be the case where the act requires a certain level of mental capacity, ie deception.
- This person may have a representative to carry out some activities such as someone with a lasting power of attorney to handle the transfer of property, or a litigation friend to act for them in civil litigation.
- each branch of law has its own rules relating to persons with certain levels of mental capacity and each branch will have its own definition of mental capacity - most of the time the legal capacity of people with mental health conditions is restricted. Many of the provisions are contained in statutes and particularly in the mental health acts.
169
How are bankrupts treated differently by the English legal system?
they lose rights such as
- being a company director
- becoming a member of a local council
- acting as a magistrate
- obtaining credit over a certain amount.
- sitting in a house of parliament
170
How are married persons treated differently by the English legal system?
marriage shares many characteristics with many other contracts: the contract can be void(i.e where either party is under 16), valid or voidable (e.g cases in duress or mistake) and it can be dissolved through divorce
- previously, spouses could not legally sue each other in tort but this rule was removed by the Law Reform Act (husband and wife) 1962
171
what are juristic persons
Corporations, non human legal entities, known as artificial legal persons or juristic persons.
- incorporated by people who wish to combine their resources for a common purpose, this could be a club or society, enterprise etc.
- these companies are usually registered under the companies act. these include limited companies, private companies and unlimited companies.
Corporations are subject to the law in much the same way as natural legal persons except where their very nature demands a different kind of treatment.
companies also have legal duties (such as the obligation to pay corporation tax which are inapplicable to legal natural persons.
172
what are the two types of corporations?
corporations sole
| corporation aggregate
173
what are corporations sole?
a legal person representing an official position which will be occupied by a series of different people. they are legal entities distinct from the people holding the position and who merely act on behalf of the corporation.
- can be created by statute and cannot die.
- examples include the queen and bishops of the church of England.
174
what are corporations aggregate?
generally the term 'corporation' related to this type. this is a legal person consisting of a number of people, of which its existence is separate from them.
i.e the Chartered insurance institute; although its membership is ever changing, its corporation itself doesn't change except for its charter and bye laws may be altered from time to time
175
What is one way to classify corporation aggregate?
the way that they are formed
176
how are chartered corporations formed?
By Royal Charter - These are formed by the crown granting a royal charter. Examples are the chartered insurance institute the institute of chartered accountants and the British broadcasting corporation.
177
how are the statutory corporations formed?
By private act of parliament. - sometimes a statute may be employed to create either a corporations aggregate or corporations sole.
the newest group of English universities were given university status by statute
An example of a corporation sole created by statute is the ministry of educations.
178
how are the registered corporations formed?
Under the companies act. -
- Registered corporations are the most common form of corporation. most are formed under the provisions of the various companies act and cn be either public limited companies or private companies (which may be limited or unlimited.
179
what are unincorporated associations?
are groups of people which have not been formed in the same way as corporations. they range in size and importance.
- small social clubs/ voluntary organisations
- small business set up as partnerships
- trade unions with memberships of a million or more.
- not generally treated as separate legal entities (although there are quasi-corporations which share some characteristics with corporations) They are simply groups individuals, each of whom is a natural legal person with their own with their legal rights and responsibilities.
this means that members of incorporations associations are generally liable for their own torts even when they are committed in the course of the associations activities.
the rights of its members generally depends on the rules of the association.
Every member is deemed to be in a contractual relationship with every other member.
